Gilman v. Cate

FROM GRAFTON CIRCUIT COURT. When the plaintiff framed his declaration, he understood that the description therein used of the locus in quo carried the south half of lot 62 to the line running north 9 degrees east from the spruce tree; and he then, as now, expected to prove that the trespass complained of was committed upon that part of the territory then supposed to be described in the original count lying between the westerly line as he claims it, and the line 32 rods east, which the defendant claims is the true westerly line of that lot. The amended count, which he asks to insert in his writ, covers the same land that he supposed his first count covered. The trespass complained of in the new count is the same trespass intended to be set forth in the original count; and if the plaintiff shall succeed in proving it, it will be by the same witnesses and evidence by whom he expected to prove the trespass originally complained of. The identity of the cause of action is preserved, and no new cause of action seems to be introduced.

In Stevenson v. Mudgett, 10 N.H. 338, PARKER, C. J., said, — "The difficulty which sometimes exists in the application of the rule arises from the fact that almost all amendments change, to some extent, the cause of action, as originally stated. An amendment which changes the alleged date of a contract, or the sum to be paid, or any particular of the matter to be performed, or the time or manner of performance, changes in one sense the cause of action; but it is not in this sense that the rule is to be understood. Amendments of that character, so long as the identity of the matter upon which the action is founded is preserved, are admissible, the alteration being made not to enable the plaintiff to recover for another matter than that for which he originally brought his action, but to cure an imperfect or erroneous statement of the subject-matter upon which the action was in fact founded. So long as the form of action is not changed and the court can see that the identity of the cause of action is preserved, the particular allegations of the declaration may be changed, and others superadded in order to cure imperfections and mistakes in the manner of stating the plaintiff's case."

In Newell v. Horn, 47 N.H. 379, which was case for fraudulent representation in regard to the boundaries of lot 66 in Dummer, the plaintiff was allowed to amend his declaration by inserting two other pieces of land, one southerly and the other westerly of lot 66, and the amendment was held consistent with the original declaration.

General statutes, ch. 207, sec. 9, provide that "amendments in matter of substance may be permitted in any action, in any stage of the proceedings, upon such terms as the courts shall deem just and reasonable; but the rights of third persons shall not be affected thereby." The courts in this state have allowed amendments with great liberality. Many of the cases were apparently much more doubtful than the present. See Bailey v. Smith,43 N.H. 409; Stearns v. Wright, 50 N.H. 293. I think the amendment was properly allowed, and that the exceptions must be overruled.